This form of consolidation, known as Multi-District Litigation, or MDL, promotes efficiency. Core evidence-gathering duties can be delegated to a select group of plaintiffs’ attorneys, who set high-level strategy, but do so in the best interests of all of the plaintiffs. Meanwhile, individual lawyers have more time to handle the unique aspects of their own clients’ cases.
Is Multi-District Litigation Good For Plaintiffs?
After all, most Xarelto lawsuits share a common set of factual allegations. Every plaintiff accuses Bayer and Johnson & Johnson of failing to provide an antidote for Xarelto. Likewise, each plaintiff says the companies provided doctors and patients with inadequate safety information.
Substantiating these allegations is a matter of gathering evidence and developing legal arguments. After consolidation, all of these questions can be answered collectively. Otherwise, each plaintiff would have to go through the arduous process of demanding evidentiary documents and testimony from Bayer and Johnson & Johnson individually.
It’s Not Bad For Defendants & Courts, Either
In a similar vein, the case’s two corporate defendants are no longer stretched across numerous federal jurisdictions. Their defense attorneys can focus on a single federal court where most of the Xarelto litigation is taking place. Rather than file the same motions over and over in multiple courts, the defense is now able to file a single motion, but one that applies equally to each case in the MDL.
The federal court system also saves time and money. With one judge presiding over the entire litigation, a single court order replaces the numerous orders, some of which may have conflicted, had the cases remained in their original jurisdictions.
MDL & Reaching Settlement Agreements
Multi-District Litigation is about efficiency, but it’s also about settlement. Many MDL judges structure litigations specifically to encourage settlement agreements, rather than a protracted series of individual trials. Some judges even schedule mandatory settlement conferences, obliging plaintiff and defense attorneys to engage in conversations about ending the litigation before trial.
This, however, was not the angle sketched out by Judge Eldon Fallon, who is currently presiding over the consolidated Xarelto cases. Instead, Judge Fallon selected a total of forty lawsuits and scheduled them as “bellwether” trials. These cases, carefully picked from a pool of thousands, best represent the legal matters and injuries at issue in the litigation.
The point, beyond actually trying forty cases, is to help both sides in the dispute, plaintiffs and defendants, understand where they stand. Whose arguments carry the day? Which particular facts were most persuasive? If a jury finds in favor of a patient, how much compensation was awarded? All of these lessons can then be incorporated into settlement negotiations.
Negotiating A Resolution
Bellwether trials change the balance of power in the negotiating room. Defendants who lose a series of bellwether trials may become more likely to settle, knowing that a prolonged string of trial defeats could be on the horizon. Minimizing court and defense expenses may be more palatable than the cost of settling all of the cases in one fell swoop. For most large corporate defendants, the issue of whether or not to settle comes down to basic economic principles.
Damage to one’s reputation, however, can’t be removed from the picture. Settlement agreements can offer high-profile defendants the possibility of reducing further media exposure and scrutiny. The logic is reversed in the wake of defense victories, after which plaintiffs lose leverage in negotiating. Bellwether cases also help to gauge the value of specific cases, pegging expectations in the conference room to actual judgments delivered at trial.
Where does all of this end? It’s really too early to say. Three bellwether trials have been held thus far, two in Louisiana and a third in Mississippi. All three have gone to the defense, with Johnson & Johnson and Bayer being absolved of responsibility.
It’s important to note, though, that we still have over 30 bellwether trials to go. Also crucial to remember is that verdicts in bellwether trials have no direct impact on any other patient’s case. There are other reasons for patients and families to remain hopeful, as Mass Tort Nexus notes.
This Litigation Is Far From Over
Bayer and Johnson & Johnson have two basic options right now. Go to court in each of the forty bellwether trials or settle some or all of them before that. Settling some of the cases would open the door to further settlements. But if the defendants don’t settle, Judge Fallon could schedule another round of bellwether trials after the first forty are over. This process can be repeated over and over.
Another option, in the absence of a global settlement, is to remand all of the cases back to their original courts, a move that probably wouldn’t make any stakeholder in this litigation very happy.
Trial Losses Aren’t The End
Losing most of your bellwether trials doesn’t necessarily mean that the consolidated litigation won’t in the end reach a fair and appropriate settlement. Take the massive MDL focused on Vioxx, a revolutionary form of painkiller that also happened to cause serious cardiovascular problems.
Out of 16 bellwether trials held on Vioxx, the drug’s manufacturer, Merck, won 11 of them. But as later analysis would show, Merck spent an average of over $10.5 million to secure each one of those defense verdicts. In the end, that was just too expensive, and Merck ultimately settled the vast majority of Vioxx lawsuits for a whopping $4.8 billion.
How Much Will Xarelto Lawsuits Settle For?
It is impossible to predict at this point how much a Xarelto lawsuit will settle for since each case is being filed as an individual personal injury lawsuit and the circumstances of these lawsuits vary greatly from one to the other.
While we cannot estimate how much a Xarelto lawsuit will settle for at this time, a litigation involving a similar blood thinner was recently settled. Boehringer Ingelheim settled 4,000 lawsuits, filed in relation to its own blood thinner drug Pradaxa, for $650 million.
The lawsuit settlements will vary because each lawsuit will contain a variety of economic and non-economic damages. Things such as treatment costs, medical expenses, long-term care, loss of earnings, loss of future income claims, and funeral and burial expenses all fall under the category of economic damages. Non-economic damages consist of things such as pain and suffering for the injuries or the pain and suffering caused by losing a loved one, as would be demanded in a wrongful death case.
The lawyers at Banville Law are very experienced in these legal matters and will work with other professionals and actuaries to determine the economic and non-economic damages for each case.
We will be following the Xarelto litigation closely and will report on Xarelto settlements as they are made, so check back here in the future for updates.
Further Reading On Xarelto